Parameswar Mohanty Vs. State of Orissa and ors. - Court Judgment

R.K. Patra, J.

1. In this application, the petitioner-Parameswar Mohanty prays for quashing of the order passed by the Additional Tahasildar, Balaosre at Annexure-5 by which he has been called upon to show cause as to why action would not be taken against him under Sections 4, 6 and 7 of the Orissa Prevention of Land Encroachment Act, 1972 for unauthorised occupation of Government land (fully described in the notice as an area of 16' x 12' Abada Jagya Anabadi, kissam Gharabari, appertaining to plot No. 173 under Khata No. 247 in mouza Purusottampur).

2. The case of the petitioner is that his three sons, Amareswar, Ajiteswar and Aditeswar purchased the land measuring Ac. 0.04 of hal plot No. 135 under hal Khata Nos. 10 and 11, Ac. 0.03 of hal plot No. 136 and Ac. 0.07 of hal plot No. 137, in mauza Samaraipur from one Smt. Pravavati Ghosh by a registered sale-deed dated 17.4.1978 and they have been in possession of the aforesaid land from the date of the execution of the sale-deed in their favour. The petitioner's sons have started construction of pucca houses over the land for the purpose of letting them on rental basis. The Tahasildar (opp. party No. 4) with an ulterior motive illegally directed the Revenue Inspector, Kirachora to visit the spot and report about the construction made by the petitioner's sons. The Revenue Inspector inspected the site and reported that the construction was being made on the land in Samaripur which belongs to the sons of the petitioner. Being dissatisfied with the report of the Revenue Inspector, the Tahasildar further deputed at survey knowing Amin of the Government to measure the area on which construction was going on and submit the report. The Amin in his report dated 19.4.1997 after making spot verification reported that there is no encroachment made by the sons of the petitioner. Despite the aforesaid reports, the Tahasildar, however, directed the Revenue Inspector on 21.4.1997 to submit 'G' form as provided under Rule 3 of the Orissa Prevention of Land Encroachment Rules. On receipt of the aforesaid direction, the Revenue Inspector, Khirachora submitted on the very same day i.e. on 21.4.1997 'G' form stating therein that an area measuring 16' x 12' of plot No. 173 in mouza Purusottampur is in unauthorised occupation of the petitioner and the encroached land is Abada Jogya Anabadi'. The allegation of the petitioner is that on the basis of the aforesaid 'G' form submitted by the Revenue Inspector, the Additional Tahasildar without applying his mind illegally passed the impugned order on 22.4.1997 at Annexure-5 calling upon him to show cause as to why action would not be taken under Sections 4, 6 and 7 of the aforesaid Act.

3. Pursuant to the rule issued by this Court on 5.5.1997, the opp. parties have filed their counter affidavit. Their case is that Ac. 0.06 in plot No. 173 appertains to Khata No. 247 of village Purusottampur which stands recorded as Abada Jogya Anabadi Khata which is Government land. This piece of land is situated within the basti site which is adjacent to the main road of the village basti to its northern and southern side. The villagers usually use this land to go to the main road of the basti. The petitioner holds his sthitiban land measuring Ac. 0.04 of plot No. 135 (Gharabari), Ac. 0.03 of plot No. 136 (Gharabari) and A. 0.07 of plot No. 137 (Gharabari) within that basti site which is adjacent to the Government land in question to its west and the basti road to its south. With a view to grab the Government land, he made encroachment of Ac. 0.06 (16' x 12') and started construction of a pucca building thereby caused obstruction of the passage to the main road of the village. As the petitioner has encroached upon the Government land, the impugned order was passed on 22.4.1997 for issue of notice to him.

4. Shri Mohapatra, learned senior counsel raised two points in support of the application :

(i) The impugned order/notice at Annexure-5 is without jurisdiction in as much as the provisions of the Orissa Prevention of Land Encroachment Act, 1972 (hereinafter referred to as 'the Act') are not applicable to Abada Jogya Anabadi land as it (Abada Jogya Anabadi) does not come under any of the categories of Government property as defined in Section 2 of the Act; and

(ii) the petitioner's sons are the recorded land owners in respect of land measuring Ac. 0.04 of hal plot No. 135 under hal khata Nos. 10 and 11, Ac. 0.03 of hal plot No. 136 and Ac. 0.07 of ha plot No. 137 in mouza Samaraipur which they had purchased from Smt. Pravati Goosh. They being the recorded land holders have constructed some pucca houses on the lands purchased by them and the Tahasildar illegally with an ulterior motive compelled the Revenue Inspector to submit 'G' form against the petitioner. That the sons of the petitioner have constructed pucca houses on their own land is evident from the report dated 19.4.1997 of the Amin. In the circumstances, the initiation of the proceedings against the petitioner who is no way concerned with the construction of house is misconceived.

5. Point No. (i)

Relying on a Bench decision of this Court in Sadhu Charan Das v. State of Orissa, 43(1977) CLT 177 Shri Mohapatra contended that 'Abada Jogya Anabadi' land cannot be held to be 'property of government' as defined in Section 2 of the Act and as such , no eviction proceeding can be initiated under the provisions of the Act. He also submitted that in case we differ from the ratio laid down in the case of Sadhu Charan Das (supra), we should refer this matter to a larger Bench to decide whether 'Abada Jogya Anabadi' land could come within the meaning of 'property of government' as mentioned in Section 2 of the Act.

On careful consideration of the matter, it transpires that in Sadhu Charan Das (supra), the Court was considering a case governed by the Act prior to its amendment made in the year 1974. In the principal (original) Act, there was a provision in Section 3 which provided as to what was 'objectionable encroachment'. It would be profitable to extract the said Section 3 :

'3. Objectionable encroachment: - Unauthorised occupation of any land which is the property of Government and which belongs to any of the categories specified below shall be deemed to be an objectionable encroachment -

(a) lands recorded as Goahar, Rakshit or Sarbasadharan in any record-of-rights prepared under any law;

(b) lands-situate in any village which are -

(i) set apart for the common use of the villagers;

(ii) used as house-site, back-yard or temple-site, whether or not recorded as such in the record-of-rights;

(iii) likely to be required for any development scheme and are declared as such in the manner prescribed by rules made under this Act by the State Government by a notification;

(c) lands unauthorisedly occupied by persons, who had once before been evicted therefrom or from any portion of such land in accordance with the provisions of this Act or any other similar law; and

(d) lands specified in Clause (a) of Section 4.'

By the Orissa Prevention of Land Encroachment (Amendment) Act, 1974 (Orissa Act 4 of 1975), the aforesaid Section 3 was completely deleted and was substituted as follows :

'3. In this Act, unless the context otherwise requires -

(a) 'Collector' means the Chief Officer in charge of the revenue administration of a district and shall include an Additional District Magistrate ;

(b) 'Prescribed' means prescribed by rules made by the State/ Government under this Act; and

(c) 'Tahasildar' means the Chief Officer in charge of the revenue administration of a tahasil and shall include an Additional Tahasildar.'

Later definition of certain other words like 'landless person' 'homesteadless person', 'standard acre' were inserted in Section 3 by Orissa Act 10 of 1988 and Orissa Act 25 of 1979. This Court, in fact, in Sadhu Charan Das (supra) after taking note of the provision of 'objectionable encroachment' as laid down in Section 3 observed in the penultimate paragraph of the judgment as follows :

'We posed the question to the learned Government Advocate as to under what category the present disputed land would come and he pointed out that it would come under Section 3(b)(ii). We do not think the disputed land will come under any of the categories. It has been described as Abada Jogya Anabadi, that is, fallow land capable of being utilised and thus does not come under any of the categories...............'

A bare perusal of Section 3 extracted above would clearly show that there was no mention of 'Abada Jogya Anabadi' land therein so as to bring it within any of the categories of 'objectionable encroachment'. When a specific question was asked by the Court in that case to the State Counsel whether 'Abada Jogya Anabadi' land would come within any of the categories specified in Section 3, the learned counsel seemed to have pointed out his finger to Section 3(b)(ii) wherein there was no mention of 'Abada Jogya Anabadi' land. On the facts and circumstances of that case and on the basis of law then prevalent, the Court observed that 'Abada Jogya Anabadi' land would not come under any of the categories of 'objectionable encroachment' as laid down in Section 3. At present under this Act, there is no provision describing as to what is an 'objectionable encroachment'. As such, the ratio of Sadhucharan Das (supra) cannot be extended to the case at hand. The present case, therefore, has to be decided on the basis of the provisions of the Act now in force. Under the Act, the prescribed authority is competent to take action under Sections 4, 6 and 7 of the Act if a person is reported to be 'in unauthorised occupation of the property of the Government'. Section 2 of the Act, declares different clauses of lands mentioned therein to be the property of Government for the purposes of the Act. (This provision was also in the original statute and continues to remain in the statute with certain amendments made to it from time to time ).

We may now quote relevant portion of Section 2 for the purpose of this case :

'2. Property of Government - Subject to the provisions of any law for the time being in force, the following glasses of lands are hereby declared to be the property of Government for the purposes of this Act, namely :-

(a) all public roads............................ and all lands including temple sites, house sites or backyards wherever situated, same in so far as the same are the property -

(i) of any Rulers of Indian State ..........

(ii) of any person paying shist..............

(iii) of any person holding under raiyatiwari tenure ........

(iv) of any other registered holder of land.............

(v) of any other person holding land under grant from Government............... (b) xx xx xx(c) xx xx xx(d) xx xx xx(e) xx xx xx(i) xx xx xx(ii) xx xx xx (iii) xx xx xx'

6. A close and careful reading of Section 2 would show that certain classes of lands mentioned in that section are declared to be the property of Government. One such class of lands as mentioned in the later part in Clause (a) of Section 2 is 'all lands including temple sites, house sites, backyards wherever situated except the property of certain persons referred to in Sub-clauses (i), (ii), (iii), (iv) and (v) of Clause (a)'. It means that the legislature has carved out an exception by excluding the property of such persons referred to in Sub-clauses (i) to (v) of Clause (a) from the purview of 'all lands'. There being no other exclusion of any property except property of these persons referred to in Sub-clauses (i) to (v), all other property are declared to be the property of Government for the purposes of the Act. Had the legislature intended to exclude 'Abada Jogya Anabadi' land from the purview of 'all lands', it could have clearly done so. At this stage, let us examine the meaning or purport of the expression 'including temple sites, house sites or backyards wherever situated' which follows the words 'all lands' in the later part of Section 2(a). In our opinion the expression 'including temple sites, house sites or backyard wherever situated' refers or qualifies to the situation or location of 'all lands'. In other words 'all lands', irrespective of their situation or location including at temple sites, house sites or backyards answer the description of 'property of Government'. 'Abada Jogya Anabadi' is not referrable to the situation or location of land. 'Abada Jogya Anabadi' land means such land which lies fallow and is capable of being utilised. To put it in other words, 'Abada Jogya Anabadi' is a particular kind or variety of land and is the property of Government.

For the reasons aforesaid, we have no hesitation to hold that 'Abada Jogya Anabadi' land also comes within the purview of 'all lands' which are declared to be the property of Government as mentioned in Section 2 of the Act. The Tahasildar/Additional Tahasildar is thus within his jurisdiction to initiate eviction case under the Act in respect of the 'Abada Jogya Anabadi' land.

7. Point No. (ii).

The submission of Shri Mohapatra that the petitioner's sons have constructed pucca house on their own land purchased by them by registered sale-deed in Samaraipur and they have not encroached or made construction on the government property, needs factual determination by the Tahasildar. The petitioner has not yet submitted his reply to the notice issued pursuant to the impugned order at Annexure - 5. This contention of Shri Mohapatra based on facts can only be decided after the petitioner files his reply to the notice already issued by the Tahasildar. We, therefore, refrain from making any comment on this point and leave the same to be decided by the Tahasildar after the petitioner submits his reply.

8. In the result, we dispose of this application by giving liberty to the petitioner to submit his reply before the Tahasildar by 31.10.1997. On filing of the reply by the petitioner by the stipulated date, the Tahasildar will dispose of the L.E. Case No. 605 of 1997 according to law after giving an opportunity of hearing to the petitioner.

There would be no order as to costs.

Pradipta Ray, J.

9. I agree with my learned brother R.K. Patra, J. but i like to add a few paragraphs of my own.

10. Section 3 of the Orissa Prevention of Land Encroachment Act (hereinafter referred to as the 'O.P.L.E. Act') prior to amendment of 1975, has been quoted in the judgment of learned brother R.K. Patra, J. It is profitable to look also to unamended Section 7 of the O.P.L.E. Act for appreciation of difference between the provisions of the Act before and after Amendment Act 4 of 1975. Relevant portions of unamended Section 7 of the O.P.L.E. Act are quoted below :-

'7. (i) Any person unauthorisedly occupying land for which he is liable to pay assessment under Section 4 shall be summarily evicted by the Collector and any crop or other product raised on the lands, any encroachments such as a building, other construction or anything deposited thereon shall be liable to forfeiture :

Provided that in the case of said encroachments, the Collector shall give reasonable notice to remove the same. (2) Notwithstanding anything contained in Sub-section (1), the Collector may decide not to take action under the said sub-section if the unauthorised occupation -

(a) does not amount to an objectionable encroachment under Section 3, or

(b) while amounting to an objectionable encroachment as aforesaid, does not or is not likely to prejudice or adversely affect -

(i) any development scheme, programme or work specified by general or special order made in that behalf by the State Government or the prescribed authority ; or

(ii) the interests of the general public or of the village community.'

11. All lands as enumerated in Section 2 of the O.P.L.E. Act were Government property even before Amendment of 1975 and encroachment proceedings could be initiated against any person unauthorisedly occupying land for which he was liable to pay assessment under Section 4, but before Amendment of 1975 Collector had the discretion of not taking action under Section 7(1) of the Act if unauthorised occupation did not amount to an objectionable encroachment under Section 3 or such objectionable encroachment did not or was not likely to prejudice any development scheme programme or work or the interest of the general public.

11. In Sadhu Charan Das's case the Division Bench was enquiring whether unauthorised occupation of 'Abada Jogya Anabadi' land belonging to the Government was in 'objectionable encroachment' within the meaning of Section 3 of the unamended Act and there was no occasion to consider whether 'Abada Jogya Anabadi' land was Government property within the meaning of the Act. It appears that it was not even pointed out in Sadhu Charan Das's case that Collector had the discretion to initiate a proceeding for eviction even though unauthorised occupation did not amount to 'objectionable encroachment'.

Definition of 'Government property' in Section 2(a) of the Act is wide and comprehensive. All lands excepting those specifically excluded under different sub-clauses of Section 2(a) of the O.P.L.E. Act are Government properties. Words '.............. all lands including of temple-sites, house-sites or backyards wherever situated' are inclusive and according to the settled rules of interpretation such kind of definition or enumeration extends and does not restrict the meaning of the generic term 'land'. Thus, all lands irrespective of its location or nature, unless coining under any of the exceptions as enumerated in Section 2 of the O.P.L.E. Act are Government properties.